Director of Public Prosecutions v Johnson

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

CR-21-01110
Indictment No. M10390799

DIRECTOR OF PUBLIC PROSECUTIONS

Damien JOHNSON

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 September 2021
DATE OF SENTENCE:	3 September 2021
CASE MAY BE CITED AS:	DPP v JOHNSON
MEDIUM NEUTRAL CITATION:	[2021] VCC 1284

REASONS FOR SENTENCE

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Catchwords: Trafficking in commercial quantity of cannabis. 47.52kg of cannabis in vacuum sealed bags in hidden compartment in interstate truck. 55 year old offender with some prior convictions (two prior convictions for cultivation of cannabis). Early plea, COVID-19; Worboyes v The Queen [2021] VSCA 169; Forfeiture of truck. Summary offence: property suspected of being proceeds of crime; $6560 cash.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A. Stephanides	Office of Public Prosecutions
For the Accused	Mr P. Randles (for Plea) Mr J. Abbinga (for Sentence)	Randles Cooper Lawyers

HIS HONOUR:

Damien Johnson, you pleaded guilty on Wednesday of this week to a charge of trafficking in a commercial quantity of cannabis as well as one related summary offence of possession of property suspected of being the proceeds of crime.
You are 55 years of age and have admitted a criminal history which is conceded to be of some relevance to my task.
The summary sets out the correct maximum penalties. The trafficking charge carries a 25 year maximum term of imprisonment which really should give you some idea of the seriousness with which Parliament views this style of offence. I must take into account that maximum penalty.
Additionally, it is what is described in the Sentencing Act 1991 as a Category 2 offence. Unless one of the exceptions set out in s5(2H) of that Act applies, a sentence involving confinement is required. Now accepting as I do that there is no burden upon an accused to bring themselves within the exceptions (following the decision of Fariah[1]), it is very clear that they have no application here. Your very experienced lawyer Mr Randles conceded this point explicitly and that concession is plainly correct. It follows then that I will waste no further time in these reasons listing the exceptions or explaining why they do not apply to you.
[1]Fariah v The Queen [2021] VSCA 213
It is conceded then that you must be sent to prison. The question for me is the length of the individual sentences, the extent of cumulation, if any, between the two sentences and the length of the non-parole period.
Facts
Ms Stephanides appeared to prosecute at the plea and she relied upon a detailed written summary of prosecution opening dated 24 August 2021 marked as Exhibit A on these proceedings. Your lawyer Mr Randles informed the court it was an agreed summary and for that reason, I see no need to set out the full facts in these my reasons. I will sentence pursuant to that agreed summary and will only briefly summarise the facts. The depositions also contain photographs, which I see no need to mark as exhibits. They show the truck and the manner in which the cannabis was packaged and hidden. Also the items found at your home in Bulla. There were also some photographs of items including an imitation firearm, a taser and a decent quantity of cannabis found at your home up in Queensland. There was some discussion about the relevance of the 20 plus pounds of cannabis drugs found at your Queensland home and I will return to that issue later in these reasons. The evidence touching upon that was not in the summary but was within statements in the depositions as well as in those photographs. I needed to understand how, if at all, it was relevant to my sentencing task.
Back then to the key facts. Very briefly stated, police in Victoria had obtained some information that you had drugs on your truck as you drove along the Hume highway northbound on 23 February of this year. Your truck was intercepted just beyond Wangaratta. You were driving. You partner and co-accused Ms Wilson was in the passenger seat. I interpose, the case against her remains outstanding so there is no issue of parity of sentence arising here.
You denied to the police that there were drugs onboard but consented to a search. The vehicle was searched. In a large storage section contained under the base of the bed in the truck, the police located a number of garbage bags and within those bags were multiple individual vacuum sealed bags of cannabis. All up there were 106 separate vacuum sealed bags with cannabis weighing in at a touch over 47.5 kilograms. In relation to the summary offence, there was an amount of cash ($6,560). It was made up of $1,610 from your wallet and two bundles of cash totalling $4,950 in a bag. The larger amount of cash held by your partner is the subject of a charge laid against her and therefore is irrelevant to my task.
A search warrant was executed at your Victorian address in Bulla Road, Bulla. Police located a vacuum sealer machine and assorted vacuum sealing bags matching those found in your truck. I say your truck as it was registered to your company.
I mentioned a moment ago the Queensland material. Police in Queensland found identical looking vacuum sealed bags of cannabis weighing in excess of 20 pounds and they were located within a compartment next to a gas bottle at your house up in Queensland. Also a taser and an imitation firearm. No-one has yet been charged in relation to that material.
You were interviewed in relation to the cannabis in the truck and made what I would describe as pretty bare admissions. You admitted it was cannabis and that you had put it in the truck. You said it was not yours but would provide no detail as to how you came by it, where it was going, what your role was or your financial stake in any of this. You did not even assert in the interview that which was raised on your behalf on the plea, namely that you were acting purely as a courier or ‘mule’.
You pleaded guilty at a committal mention, having said that you would plead guilty in the lead up to that hearing. You have been in custody since your arrest on

23 February of this year.
So much then for my short summary of the summary. That is all it is. I sentence pursuant to the more detailed agreed statement.
In Mitigation
Mr Randles conducted the thorough plea on your behalf. He relied upon a written outline dated 23 August, some supplementary written submissions dated 30 August as well as a number of character references, predominantly from various family members. There was also a letter from an accountant as to the company’s tax position as well as various documents relating to the circumstances of the purchase of that seized truck. It had been purchased with a loan for around $80,000 in June of last year.
The written outline of submissions went into the details of your personal background and educational and work history . Mr Randles made submissions as to your role and the relative gravity of the offending as well as your prospects of rehabilitation.
He relied principally upon the following matters in mitigation:
·     Your admissions and early guilty plea in the midst of the global pandemic;
·     The presence of some remorse;
·     Your limited role;
·     The financial ramifications of the forfeiture of the truck;
·     The increased burden of imprisonment arising from the response by prison authorities to the COVID-19 pandemic;
As I said earlier in these reasons, he explicitly conceded that none of the exceptions set out in s5(2H) of the Sentencing Act applied to you. He conceded the inevitability of a prison sentence and one requiring the fixing of a non-parole period. He made an unusual submission as to a sentence of no more than 18 months with a non-parole period of no more than nine months being within range here and backed that up by referring to a number of sentences passed by other judges in other cases, cases that had virtually no similarity at all to this one. I did not find that at all helpful and will say more about it later in these reasons.
Prosecution
Ms Stephanides on behalf of the Director of Public Prosecutions of this State had also filed some written sentencing submissions. They were marked as part of Exhibit A and they were generally pretty uncontroversial. Mr Randles own additional submissions confirmed that point. So I see no need to restate all of the prosecution submissions made to me. The written submissions though, though describing your role as that of a courier (paragraph [6] and [11(c)]) then discussed other material suggestive of a greater role than that (see [11(c)]). In addition in oral argument,

Ms Stephanides raised issues as to the minimal evidence touching upon role in this case. Also the existence of the Queensland evidence which she argued was relevant at least to an assessment of your role. The prosecution made submissions as to the relevant purposes of sentencing in a case such as this. Ms Stephanides made oral submissions as to the gravity of the offending, the minimal evidence touching upon role, the limited admissions that you made on interview and the extent to which a court could find genuine remorse here. The Crown challenged the use of the many cultivation sentences which your counsel was relying upon. You were trafficking a drug, and in circumstances of what the prosecution argued, was high moral culpability. The Crown challenged the applicability of the 'range', if that was what it was, provided by your counsel. They submitted that such an outcome was not open here. They took me to a few instances of other sentences imposed by one judge (it was Judge Trapnell) in relation to a number of linked offenders. Also, to the sentencing statistics. They submitted that even if you were acting just as a courier, that your position within the company using the company truck and the cloak of a legitimate business would be a matter of real significance in assessing the seriousness of the offending. In any event you had provided no real account of your role. The motive, they said, was plainly financial gain and in the setting of this case, given what was before the court as to your financial position, they submitted there was no aspect of need here. It was just greed. The Crown argued that the offending fell at a low to low medium range. Your counsel did not really challenge that submission but said it was offending at, as he put it, the lower end of seriousness.
I will come back to discuss the competing submissions including as to the objective gravity of the offending. Let me say though that ultimately it is for the court to make judgements as to your role. It is for the court to make judgements as to the level of seriousness of the offending. I am to make those assessments as far as is possible from the available materials. I am not bound by submissions made by either party in this regard and I flagged in the course of the plea some of the concerns that I held. I have done that as a matter of fairness so that both counsel, but mainly yours, was able to address me or for that matter to place evidence before me if he chose to. I will come back to my conclusions later in these reasons.
Background
I will turn now to your background but I intend to provide only a pretty brief summary as I accept the materials and submissions placed before me touching upon your background. I see no need just to slavishly restate it all. Further your background has nothing at all to do with your decision to commit this serious crime of trafficking in a commercial quantity. Nothing.
Very briefly then, you are 55 years of age born on 9 November 1965. You were born in Melbourne and raised in Sunbury. You were the oldest of three children and have a brother and a sister who have each written strong references. They have no criminal history. I understand that your father died in 2010. Your mother is still alive though in very poor health, as her letter makes clear. It is clear from her reference and a number of the other references that you have had a large role in assisting her and now others will need to fulfil that role. You would be understandably worried about your mother’s predicament and your inability to assist her or even to see her. I take that into account even though it was not specifically relied upon by your counsel. It would, I am sure, heighten your custodial burden to some degree, though of course it cannot be a large matter. The fact is you chose to offend even as she was in such a parlous state.
Back then to your background. Your completed Year 10 at a technical school and entered the workforce. You have had a very good employment history. You started out in unskilled labouring but progressed to truck driving and you have worked for decades in the transport industry. For the last 20 years you have had businesses which have evolved to providing express freight along the East Coast, often connected up to the mining industry. Your current business 'Hotshot Gonjo Pty Ltd' has been operating for about nine years. Unmistakably, you were using this legitimate business to cloak or shield this serious offending on this day. That much is conceded. At the time of your arrest, you were operating five trucks and employing six casuals. The business has kept trading whilst you have been in custody, the burden being assumed by family members, mostly by your oldest son, as I understand it. Your counsel said you were in a decent financial position at the time of the offence with the rider 'as long as you don’t find that Mr Johnson was in the league of James Packer'. Well you were not in his league but the fact is you had a successful business and you had a house in Queensland up near Yeppoon and one in Bulla. Financial need does not even enter into the picture here and so much was readily conceded by your counsel.
You have two grown up sons, 25 and 33 years of age respectively, who have completed apprenticeships and who are gainfully employed, one in his own business as a builder, the younger son as an electrician. They have also stayed out of trouble. They have also written references as has a niece and a friend or work colleague.
You have been in a relationship with Ms Wilson, your co-accused, for about 14 years.
Part of your personal background involves a criminal history. It was described in the written submissions as ‘modest prior convictions of little relevance’. I did not entirely agree with that submission actually and as a matter of fairness I raised that issue with your counsel. Ultimately, Mr Randles agreed that the cultivation convictions did assume some relevance to my task.
You should understand you do not fall to be sentenced a second time for any of that past offending. You have served the sentences which were imposed but I have to make judgements as to your prospects of rehabilitation and the need to deter you and protect the community from you. As a result of my query, Mr Randles told me more about the two cultivation convictions. One was a hydroponic cultivation with a power bypass dealt with in 1999 with a dozen or so plants. The 2012 cultivation related to six or seven plants. Your counsel argued that on each occasion, those plants were for personal use. If I may say so, that seems unlikely given the number of plants and the penalty imposed which in each case was a term of imprisonment, though one held in suspense. It does not actually matter though. The fact is, of course they are relevant prior convictions. You were not 19 or 20 when you committed those crimes. You were a mature employed man in his 30s and later in his 40s.
There is no purpose in my setting out all of the detail of the other matters. It is true there are matters in your history of no or little weight to my task. There are many offences dealt with for instance when you were a very young man. The first five entries in the Victorian record dealing with various street offences do not in any way inform my task. Nor the interstate matters listed actually. But as I have said, I cannot just ignore the fact that on two separate occasions you have been before the court for cultivating cannabis and theft. You received a suspended sentence in 1999 and again in 2012. Those matters do have at least some relevance to my task as is now conceded. Here you are trafficking in a commercial quantity of that same drug in 2021, this time as a 55 year old man.
You were not a drug user at the time of the offences I am now dealing with. I take into account your background as far as I am able to. There is nothing at all in your personal background which in any way reduces your culpability.
I turn now then to consider the other matters raised by your counsel.
Guilty plea
The first of those matters is your guilty plea. It was entered at the earliest stage.
Your early guilty plea is significant. The community has been saved the time, cost and the effort associated with the conduct of a committal hearing or a trial.
You have facilitated the course of justice. Witnesses have not been required to give evidence in this case. You have taken this earliest of responsibility for your offending by pleading guilty and you have done that in the midst of the disrupted operations of this court arising from the response to the COVID-19 virus. We have a very large backlog of trials. Had you contested these allegations, the trial in your case would have formed part of that backlog. The trial would not have got on for a long period and that backlog is ever growing. It in fact has become quite mountainous. Your early guilty plea is worthy then of significant extra weight in such a setting for the many reasons set out in the recent decision of Worboyes.[2] Your counsel submitted at paragraph 4 that you had made full admissions. I accept that you made some admissions but frankly they were pretty minimalist. Still I take them into account in your favour.
[2]Worboyes v The Queen [2021] VSCA 169
I take these various matters into account in mitigation.
Remorse
Mr Randle spoke of your prompt and full admissions (see paragraphs [4] and [11(b)]). This was in support of the inference that you were genuinely remorseful (see [11(i)]).
Well, your interview with the police does not convey to me the presence of any remorse at all at the time that it was conducted. Prior to the search you had denied the presence of any drugs. No doubt you hoped the compartment would not be found and you would be on your way. Unfortunately for you, it was located. It was your truck (or your company’s) and in such a setting, you made some very bare admissions as to the knowledge of the presence of the drugs and having packed them. Virtually every other question dealing with your role, the destination, the weight of the drugs and the value or your reward was not answered by you, as was your right. See for instance Questions 41, 42, 64, 65, 75-79, 83, 108, 172, 182 and others. It is not aggravating that you approached the interview in this way. It was your right to do that. It is just that it is not a particularly fertile ground from which to launch this submission as to the presence of genuine remorse. It was a matter of fact and pragmatic interview giving virtually nothing away. It does not convey to me the presence of any remorse at that time. Of course that time was some months ago. You have since pleaded guilty at the earliest of opportunities and a guilty plea is often enough indicative of at least some remorse. Here though, the case against you was just an overwhelming one. Now that has nothing to do with the extent of the discount I give for your guilty plea. I have already spoken of that sizeable discount and it’s dimension is not connected up to whether I can find remorse or not. The strength of the case against you is relevant though to the inference as to remorse that might be drawn from the fact of a guilty plea. What else could you really do other than plead guilty in such a setting as this?

Some of the referees speak of remorse and of course I do not ignore those statements. But why were you acting in this way? What have you told them as to your reasons? I have no idea on either score. The fact is I posed a number of questions myself in the course of the plea. I was actually trying to understand why you had decided to commit an offence at this level of seriousness. I was trying to ascertain what your true role was. Well I am no wiser than the police who interviewed you. You choose not to provide any information to the court at all. Having read all of the materials, I am prepared to find the presence of some limited remorse in this case. I take that into account in your favour.
Rehabilitation
I turn now then to your prospects of rehabilitation. Your counsel relied upon your guilty plea, the presence of remorse and your long work history. He relied upon what he described as those modest prior convictions of little relevance though accepted that was perhaps an overstatement given the existence of the cultivation convictions. He relied on the observations of the various authors as well. I have not bothered to set out that material in any detail to this point and nor will I. I have read the various references and accept that each of the authors is speaking truthfully as to their opinion of you. You have obvious and strong family support You obviously have a very close bonds with family members. There are strong references from your niece who is also your goddaughter, from your two siblings and from your mother, as well as from your two sons. Also from someone who knows you in a work setting. As is usually the case, you are far more than just the person who has committed this serious offence. There are real qualities on display and they are spoken of in these references by those who know you best. There is still that family support. You always have enjoyed that of course.
Mr Randles relies upon what he says is the inference which should be drawn as to your limited role. He argues that you have spent time in custody for the first time, hard time in the face of the limitations arising in the COVID-19 setting. He argues that you have excellent prospects of rehabilitation. He told me that the company has been kept afloat by your oldest son and you will be in a position to resume what has been the norm for you upon your ultimate release from prison. That is, a return to a life of hard work and industry.
Well whilst I view your prospects quite favourably, I do not rate them as highly as your counsel does. Nor as low as the Crown says I should, actually. You were not some silly teenager committing a crime in the spur of the moment. You were a mature and relatively successful business owner with not one hint of financial need. You have been dealt with on two past occasions as a mature man for cultivation of cannabis. This offending that I am dealing with was unmistakably serious and there is no reduction in culpability at all. You were not in debt. There was no dire financial setting. There was no drug use or mental health issues eroding your decision making. There is not any suggestion that you were anything other than entirely awake to the seriousness of this offending. You were using your legitimate business to commit a serious crime. Why were you? Obviously enough a very substantial financial incentive existed. So your conduct reeks of a calculated decision taken by a man in full control of his faculties. I have the reservations I have expressed as to the extent of remorse. It is not as fulsome as is described by your counsel.
You certainly do not have the impediments to rehabilitation that often enough do exist, for instance serious mental health issues or addiction issues. So those impediments to rehabilitation do not exist here but equally, it follows that those sorts of thing do not and cannot explain your descent into this serious offending.
One would hope that the time you have spent in custody to date as well as the time which lies ahead for you would serve to deter you to a degree. I am ultimately prepared to assess your prospects quite favourably. The fact remains though that none of those who know you would ever have expected you to engage in such a serious crime as this and yet you did, with your eyes wide open. Obviously enough, a sizeable illegal financial gain was at the heart of this terrible decision. But it was hardly a spontaneous crime. You, like so many others, have bowed to temptation. Hopefully you will not in the future. I find that you have reasonably good prospects of rehabilitation. My reservation stems from the serious and calculated nature of this offence by a man with no reduction in culpability at all.
COVID-19
Your counsel relied upon the impact of the COVID-19 pandemic upon your custodial experience.
I accept that the COVID-19 virus and the response to it by those running the prisons has increased your prison burden. Prison has been a more stressful environment in the time you have been there to this point and that now seems likely to continue to some extent into the future given announcements made earlier this week.
Social distancing has not been easy. No doubt there is worry about catching the virus in such a setting where unlike someone in the community, there is just no level of autonomy. I expect you would have been subject to an initial quarantine period in February. You have also had limitations to visiting and courses for a sizeable portion of the time you have been held in custody to this point.
As to what lies ahead with the pandemic, well it is impossible for me or anyone else to know. We have been experiencing ups and downs as the events of the last few months make plain enough. We had the circuit breaker lockdown in February and the temporary suspension of prison visits. We have had the issues since including of course further community lockdowns. We are currently in a lockdown. Even as the plea was being conducted before me the other day, there were Government announcements being made as to the extension of this lockdown and the road map out of the lockdown restrictions. It seems to me that there is no real end in sight just at the moment. The Delta strain is worrying most governments in this country. There will no doubt be some ongoing anxiety amongst prisoners as to how they will fare. I take that into account. I cannot know if limitations in prison will be prolonged or if once lifted, whether they may start up again down the track and I am not free to speculate about those sorts of things. I take into account though the impact of the virus in the ways urged upon me by your counsel. It has not been a good time to be locked up and that looks likely to continue to a degree into the future. For you it happens to coincide with your first time in custody and at a time when your mother is not at all well. It is not an easy time for you. As to your mother’s predicament I mentioned it earlier, one can have only sympathy for her and I am sure you are worried that you are not there to assist her as you have been in the past. No doubt that will play on your mind. You do not need me to tell you that you should not have put yourself or her in this position but you have and I accept that your time in custody is none too easy.
The Offences
I turn to the offences. Your counsel conceded that the commercial quantity trafficking was a serious offence. He was right when he made that concession. But he took some comfort from the fact that this was a single day offence with less than twice the commercial quantity and with you acting as nothing more than a ‘mule’ transporting the drug from A to B. He submitted it was at the lower end of seriousness. I do not accept that this is a low level example of commercial quantity trafficking at all. The suggestion as to your role was made from the Bar table. You provided no real account to the police other than admitting knowledge of the cannabis. Your counsel has provided to me virtually no explanation as to why you were involved. Why would you a successful business owner be engaged as a ‘mule’? The fact is this was your truck. It was your company. It was your compartment within a relatively recently purchased truck. I do by the way accept Mr Randles’ submission that I cannot find beyond reasonable doubt that the compartment was fitted specifically to carry drugs.
The cannabis was in a sizeable quantity. To say by way of mitigation that it is 'less than twice the commercial quantity and a long way short of large commercial quantity' does not take you very far at all (see paragraph [9]). I am dealing with you for commercial quantity trafficking. You have not just skated past the threshold by some small margin. You were trafficking in almost twice the commercial quantity of this drug. Then there is the contention that you were no more than a mule transporting the cannabis from point A to point B. That was not sourced from the interview. You told the police virtually nothing as to your role. Nothing about the end destination. Nothing about where the drugs had come from or were going to or your actual role. Nothing about your reward. I raised my concerns with your counsel. There was no evidence of these matters on the plea. Where was the material touching upon your limited role? Well, he relied upon me drawing these favourable inferences in your favour. It was plain enough that you were in the act of transporting these drugs. They were in your truck and you were bound for Queensland. You had a house up in Queensland and lived between the two houses. The load of ingots you were carrying was destined for Boyne Island up near Gladstone. Well the drugs were in transit, we know that. Hence you were in possession for sale. But what was your actual role? What relationship did you have with others, if in fact there were others? What was to happen to these drugs at the other end? Where was the other end? How had they been packed? How could someone else know about the hidden storage area? How could anyone else know the dimensions of the storage area under the bed such as to package the drugs in the way we see in detailed in photographs? (Photographs 19, 21, 22 and 28). Well, I posed a number of questions to your counsel. I was not pressing for information identifying other participants. That is not my role. I just wanted to have some sense of how it was claimed that you fell into this alleged role of being 'a mule'. Your counsel on your instructions would provide no account to the court at all. I am by the way not being critical of Mr Randles. He acts on your instructions and it was apparent that you were on some if not most of these topics not prepared to provide him with any detail. He kept saying in response to my queries 'there is no material in the depositions as to that fact'. So I asked him, where were the drugs going? Which state? Well, you will not tell me. How did you come by them? You will not tell me. How had you been recruited, if you had been? Just silence on that topic. What were the vacuum machine and bags for at Bulla Road? You will not tell me but your counsel argues I should not be satisfied beyond reasonable doubt it was connected up with the trafficking. What impediment was there to provide instructions as to a lawful use on this topic, if there was a lawful use? What was your reward to be? That is not a difficult question, if you are just a mule. You choose not to tell me or your counsel. So there is silence on these and many other topics. No account by you as to your true role in the interview. No account by you in an expert report or to the authors of the references. No evidence was called from you. I am being asked to draw inferences in favour of the man in the dock who deliberately chooses to provide no actual detail at all to the court. Well it is not some game. I flagged my concerns. Not only were you not called on the issue. You would not even provide instructions. I am not satisfied on the balance of probabilities that you were a mere mule.
What then do I really know of your crime? You possessed the drugs for sale on this day. I know that much from your plea. Your trafficking has no connection at all to any drug use or to any financial need. There was no financial need at all. That was conceded. The cash the subject of the summary offence existed as a matter of fact. Now I am not going to improperly expand the date on the trafficking and infer that the cash is the product of acts of past trafficking. I am dealing with you for this cannabis possessed for sale on the date on which it was found. Not for any earlier illegal conduct. However that money in combination with the other submissions made as to your decent financial state makes it abundantly clear that you were not in any financial need at all. See the case of Ververis[3].
[3] [2010] VSCA 7 at para [35]
So this was not trafficking to support your own need at all. You had no need for cash or drugs. You were not a drug user. You are miles removed from those many unfortunate addicts who are caught up in the miserable existence of small scale trafficking to support a habit. In a way, need and not greed is often enough on display in those cases and there is the absence of the aggravating feature of financial gain. There is the absence of greed. Their moral culpability may be reduced in such a setting as that. That is not the character of your crime at all. You were no addict and this was not small scale trafficking. This was greed pure and simple. This was a business decision and a seriously criminal one indeed, as you know now and knew then. You were taking a calculated risk. I cannot reach any view as your position in a hierarchy. Maybe you were running your own business. Maybe the cannabis was yours and yours alone. Maybe you were in some form of partnership or joint venture. But I cannot act on 'maybes'. Those sorts of conclusions would require me to be satisfied beyond reasonable doubt and I cannot be so satisfied.
I believe it is much safer to pay no regard to the cannabis and the weapons at your Queensland house. If that cannabis was yours, well of course it would undoubtedly raise further obstacles as to the claim that you were just a courier. But on the materials before me excluding the Queensland evidence, I am not satisfied on the balance of probabilities that you were just a courier. So I put aside the Queensland evidence. Though found at your house, your link with the Queensland drugs and weapons is yet to be established. Maybe you will be charged. If you are, no doubt your plea of guilty to carrying these identically packaged drugs in a Queensland bound truck would go a long way to linking you to the Queensland cannabis found at your house. But in dealing with this Victorian prosecution, what I will do is put the Queensland evidence aside altogether.
Purposes
I must take into account a large range of matters including the offence maximum penalty and the nature and gravity of the instant offending.
I have to also consider the weight to be given to the various purposes of sentencing. Rehabilitation is one such purpose. As I have said I assess your prospects quite favourably.
I am required to punish you justly and proportionately. That is an important sentencing purpose for this style of trafficking.
I must also denounce your conduct.
Community protection is also of importance in this sort of case.
Deterrence is an important sentencing purpose in this style of case. There is the need for this court to seek to deter you as well as others from offending in the future.
The principle of specific deterrence relates to the need to deter you. I cannot ignore that purpose given the serious nature of this crime and the existence of a couple of occasions in the past where you have come before the courts for relevant matters.
General deterrence is an important purpose of sentencing in this case.
We all know that illegal drugs have had a devastating impact on our community. Those who take the decision to traffick in drugs at the level you did cannot and should not expect much by way of leniency.
People such as you who traffick in drugs at this level are almost always taking a calculated risk, as you undoubtedly were. They hope that the potential rewards on offer will justify that risk. Of course, they hope not to be caught.
The seriousness with which Parliament regards drug trafficking can be gleaned from the very large maximum penalties provided for. We, as Judges, must strive to deter future likeminded offenders from committing these serious offences.
I must pay regard to current sentencing practices, though that is not a single controlling factor. As I conveyed earlier in these reasons, I was not at all assisted by being taken to the so called 'authorities' set out in your counsel’s written outlines. Other than Worboyes, which I do pay regard to, none of those cases were authorities for any principle at all. Not only that, even had they been mustered in a case of commercial quantity cultivation, which this case is not, they would have been correctly viewed by a judge as an exercise in cherry-picking the more favourable sentences out of hundreds. I must have dealt with over twenty such cases myself in the last few years including cases which have gone to the Court of Appeal. Time and time again, the Court of Appeal has spoken of the inadequacy of sentencing practices for commercial quantity cultivation. In recent cases, the Court of Appeal has spoken as to how there is nothing unusual about even a crop sitter with no financial stake and low culpability receiving a sentence in the vicinity of four years. So the selection of cases provided are plainly a selection of some of the lower sentences to be found and in my view not even indicative of current sentencing practices for that crime. However, that crime is not even the crime you are admitting. You are not a cultivator. You are not a crop sitter. Those people were. They were charged with cultivation of a commercial quantity of cannabis. They had no stake in the crop. They were not trafficking. Mostly they had no prior convictions at all and were almost universally to be deported. Some had dire financial position. Some the application of the so called ‘Doran’[4] discount for high levels of co-operation with the police. Some had excellent prospects of rehabilitation. What relevance does the sentence imposed in any of those cases have for the sentence in your case? The answer is none at all. Mr Randles mustered an argument dealing with the proposition that such people as the crop sitters are low to low medium offenders and so too are you. I do not agree that there is any parallel at all. They are cultivators with low culpability, poor financial positions and the weight spoken of in those cases was crop weight not dried weight and where the player was performing a very limited role with bare financial gain and no stake in the crop. They were people with reduced culpability. The additional case of Canfield[5] was not even a commercial quantity trafficking or cultivation. I was not assisted by being taken to these cases. Those cases are of virtually no value to my task. Nor was I assisted at all by the submission as to range, if that is what it was. It really was a direct submission as to a maximum of 18 months with a non-parole period of nine months being appropriate. Well that is a statement of opinion by

Mr Randles and is founded on an acceptance of all the matters in mitigation being found by the court including genuine remorse and low role, as well as an acceptance that the cases that he referred to dictated such a response. Well they do not. The submission falls down at every level.
[4]R v Doran [2005] VSCA 271
[5]DPP v Canfield [2021] VCC 892

Nor for that matter was I greatly assisted by the cases selected by the prosecution. They were all linked cases from a single judge dealing with a number of co-offenders. There were a range of individual factors at play including grave illness of the most serious of the offenders and then the impact of the consideration of parity of sentence flowing through the other sentences that were provided to me. They do perhaps illustrate that even someone caught up purely as a courier is committing a serious crime but I hardly need a case to illustrate that point.
Ultimately I do not know why there was such a need to find cases dealing with the same drug such that Mr Randles saw fit to select a quite different offence of cultivation of a commercial quantity of cannabis. The nature and qualities of the drug is not an important consideration. The relationship between the quantity of drug (whatever that drug is) and the commercial quantity threshold for that particular drug is of course far more important.
Anyway I reject the submission made by Mr Randles as to the appropriate sentence in this case. Even making allowances as I do for the heightened benefits to an accused pleading guilty described in Worboyes, a sentence at that level would be totally inadequate. It would not pay adequate weight to any of the sentencing purposes or to the maximum penalty or even to current sentencing practice.
I have looked at the relevant portions of the Judicial College of Victoria Sentencing Manual dealing with commercial quantity trafficking (at 7.3.1 and 7.3.2).
I have also looked at the Sentencing Advisory Council Snapshot no.244 of 2020 dealing with this offence. That was referred to by the prosecutor.
I have looked at a number of recent cases dealing with sentencing for this crime. Statements of principle from the Court of Appeal rather than individual sentences of single judges of this court. There have been some strong statements from the Court of Appeal as to the inadequacy of sentencing practices for serious examples of commercial quantity trafficking. (See Gregory[6]). Plainly then there has to be some caution in looking at any sentences imposed prior to that decision or for that matter, the data contained in the statistics which predate that decision. The Judicial College of Victoria Sentencing Manual at 7.3.1.1 says as much. It is clear enough when reading the cases that sentences are rising in this area.
[6]Gregory v R [2017] VSCA 151 (“Gregory”)
The Court of Appeal in Gregory identified features which would lead to the expectation of sentences advancing well into double figures.[7] They were set out at paragraph 98. One factor was if the quantity was close to the large commercial quantity. Another was a finding that a person had a senior role, or role in charge, or lengthy duration of offending, or a person having relevant prior convictions or being convicted following a trial. There were a variety of matters which the Court of Appeal said would lead to far greater sentences being imposed in the future in serious examples of this crime.
[7] Ibid at [98]
Now, it is plain enough from a reading of that case that they were focussing their attention on ‘upper category’ offences, as they were described.
There have been enough decisions out of that same court questioning the worth or value of breaking down offences into categories and subcategories. What is far more important is to actually examine the conduct.
The statements from the Court of Appeal in that case of Gregory and cases citing Gregory it seems to me have signalled a very different range of sentences into the future for some commercial quantity traffickers. Gregory has been affirmed in cases since, for instance in the DPP v Fatho and Huynh[8], Sharbell[9], Condo[10], Vincent[11] and Quah[12]. I am by the way not for one moment suggesting that you are on all fours with Gregory. You are plainly not. Nor am I even satisfied that you fall into that upper category of offence discussed in that case but there are undoubtedly some relevant general matters of principle discussed in it.
[8][2019] VSCA 311 (“Fatho”)
[9]Sharbell v The Queen [2018] VSCA 324
[10]DPP v Condo [2019] VSCA 181
[11]Vincent v The Queen [2021] VSCA 99
[12]Quah v The Queen [2021] VSCA 164 (“Quah”)
The fact is what the statistics might show or what other judges have done to other offenders is not decisive to my task. Not at all. I must sentence you for your crimes. These other sentences that I was taken to by both counsel are not precedents. They are not 'authorities' which bind me to a particular outcome. Statistics are of very limited use. So too other cases, especially the ones that I was provided with.
That is because I am exercising a sentencing discretion. There is no such thing as one correct sentence. I am sentencing you for your crimes and that is not a mathematical task or one where the outcome is dictated by what has happened in other cases.
Matters of principle are far more important and as I have said there are many such statements of principle in the cases to which I have referred.
Offence gravity and role
I have already mentioned the nature of the offending. Well I have to make a judgement as to the gravity of your offending. Well here the weight of the drug is a fixed matter. The quantity of drug is always an important consideration. It is however not the only or even the most important matter. Commercial quantity for cannabis is 100 plants or 25 kilograms. You had 47.52 kilograms. It follows you had a few kilos under twice the commercial quantity of this drug. The large commercial quantity for this drug is fixed at 250 kilograms so you are a long distance from that threshold. The fact is though you have not just marginally exceeded the commercial quantity.
My task if not to undertake some assessment of the relative harmfulness of a particular drug of dependence. This is a quantitative-based regime. It is not by the way one of those drugs where the reward differential permits a lesser sentence. I note that for instance the drugs GHB or 1-4 Butanediol have a low cost and equally then a low reward potential. That low reward differential is why they have been attracting lower sentences. (See the case of Fatho[13]). Well that is not the position for cannabis at all. It is a highly valuable and saleable drug and you were a key player here and for no reason other than greed.
[13] at [50]-[53]
Duration is what it is. One day. On 23 February of this year, you were trafficking in a commercial quantity of this drug as you were on that day in possession for sale. As I said earlier, you do not fall to be sentenced for events before that date. It is not a matter of mitigation that you were in possession for sale on this one day. That submission is very often made and really it should not be. I said on the plea that it is greatly overrated and that the Court of Appeal had said as much in the case of Quah.[14]
[14]Quah v The Queen [2021] VSCA 164
If there had been earlier transactions embraced by a between dates charge well that would probably be a feature of some aggravation. It would represent a more serious example of the offending. But it is not mitigatory that you are in possession for sale on this day. The interception and arrest, as you know, terminated your possession and hence this crime. You fall to be sentenced for the trafficking on that date. That is very often the case when a drug is seized by police.
Sometimes there is a duration of offending alleged.
In some cases whether between dates or single date offending , there can be material that may cast some light on an offender's role or the scale of the enterprise. There might be for instance physical surveillance or telephone intercepts or listening devices. There might be a documentary trail or even evidence from a co-accused spelling out the extent of the role, or maybe even covert purchases by a police undercover operative.
Sometimes there is even an account as to role offered by an accused in his interview with the police, or to a psychologist or even to the court through instructions to counsel or by way of sworn evidence given before the court by the accused. There may be material touching upon the dimension of the past financial gain or for that matter that which was contemplated into the future.
Well, as I said earlier, you choose to provide no detail. No account. The hope no doubt is that there will be some default setting of treating you as the least serious offender that can be envisaged. Your counsel argues you are just a courier transporting from A to B. Well, your involvement as a successful business man running a freight company casts sizeable doubt on that assertion. Why on earth would you be involving yourself in such an enterprise? You were using your company and the company structure to cloak the crime with legitimacy. How would anyone else know of your capacity to secrete drugs in the way that you did? It was your truck, a recently purchased one. You were travelling interstate. You had the vacuum sealing machine and bags at your address in Victoria. I am not satisfied on the balance of probabilities that you were just a courier.
Financial gain undoubtedly was the motivation here. I have no doubt of that at all. I am satisfied of that beyond reasonable doubt. In fact it is conceded. I cannot know exactly what sum you hoped to obtain for you will not even tell me but I am satisfied beyond reasonable doubt it must have been a very sizeable amount of money given the risk you took and your financial position at the time which was hardly impecunious. As I said earlier, you were taking a calculated business decision and it has backfired spectacularly.
A court will always try to understand the role of an accused, but sometimes the court is simply not able to identify the precise role. That is actually pretty common in drug prosecutions and it is ultimately the position I find myself in here. None of this is to say that role is unimportant. Of course it is not. Just that sometimes a court cannot reach a view to the required standard. (See the case of Olbrich[15]). I refer also to the Court of Appeal decision of Dao and Tran[16] at paragraph [17] where Nettle JA said the following:

'Much of the argument before us appeared to assume that an offender who is caught trafficking in a vast, large commercial quantity of narcotics, and chooses to remain mute as to the level and extent of his or her involvement, is entitled thereby to dictate that he or she be sentenced as if they were no more than a hapless courier. That assumption is misconceived. The law does not afford large commercial quantity drug traffickers the option of plumping for a mean or median sentence as some sort of default position. An offender is entitled to say nothing and, if it be the case, to rely on the fact of there being no evidence of aggravating factors. But, if an offender makes that choice, and there is not otherwise acceptable evidence of mitigating circumstances, the judge is bound to proceed on the basis that there are not mitigating factors of which evidence might have been given. Consequently, where the quantity involved is as vast as it was here, and there is insufficient evidence to sustain an inference on the balance of probabilities that the offender was at a low level of any relevant business hierarchy, or had limited knowledge of what he or she was involved in, or had no expectation of financial reward or was for some other reason less culpable than would otherwise necessarily be implied by being found in possession of vast quantities of illicit drugs and cash in the early hours of the morning in a public park, the judge must assume that there is nothing which can be said in mitigation about those factors'.

[15]The Queen v Olbrich [1999] HCA 54, 199 CLR 270, 73 ALJR 1550; 166 ALR 330; 103 A Crim R 149
[16]Dao and Tran v The Queen [2014] VSCA 93 at [17]

Well of course that was in a setting involving vast quantities of drugs in a large commercial quantity but the principles that he speaks of are germane to my task.
As is often enough the position in this sort of case, I will never know the full details of your involvement. How, why and when you came to be involved. Of your relationship with others, if there were others or what was to happen to the drugs and the extent of your reward. You will not tell me any of those things and that of course is your right. That is not a matter in any way in aggravation by the way. The court was being asked to draw inferences in your favour as to role in the absence of any real account from you, the man sitting in the dock who can fill in the many blanks that exist here. Well I tried to tease out such details as would permit me to make an assessment of the mitigatory basis put forward by counsel on the plea and had no luck in that regard.
It is your choice to not present any evidence or even provide your instructions to the court in so many areas. My inability to reach a view as to your role does not compel me to accept on the balance of probabilities your counsel’s submissions as to your role on the inferential basis suggested. I have to be satisfied of mitigatory matters on the balance of probabilities and I am not satisfied to that degree that you were just a courier.
As I said earlier, what I do know is that on the day in question you possessed these drugs for sale. You were trafficking them. There is no evidence before me disclosing the involvement of any other person at all. Your partner’s case remains outstanding. It is impossible for me to have any understanding of your role with others in this exercise or even if there are others in some organisational structure. I cannot just dream up a hierarchy out of thin air nor for that matter place you at the top of the tree or for that matter at the bottom. I am however not satisfied on the balance of probabilities that you were in any way a minor or low level player. I am not satisfied on the balance of probabilities that you were just a courier.
You were caught with the drugs in transit of that there is no doubt. Even had I been so satisfied on the balance of probabilities that you were purely a courier, provision by you of the truck, and the company structure and legitimacy provided by that structure would make it a serious example of a crime committed by a courier. Even that limited role would be a role of fundamental importance and with none of the reductions in culpability often applying to so called 'mules'. But I’m not so satisfied on the balance of probabilities that your role was so limited.
There is no reduction in your moral culpability here at all. That is why it is pretty much a worthless exercise referring to cases such as the many crop sitter cultivation sentences I was taken to where there is reduction in culpability almost across the board. You have none. No reduction in culpability and a financially secure man acting out of greed.
There can of course be larger quantities than this but you had almost twice the commercial quantity. So, as I said earlier, this was not some modest rise above the commercial quantity threshold.
Though not falling in the realms of the cases envisaged by Gregory, this instance of commercial quantity trafficking was still serious indeed. I do not accept that it represents a low level example of the crime at all. I believe it falls towards the mid-range of offence seriousness and this offence is punishable by a 25 year maximum term of imprisonment. The proceeds of crime offence is of course far less serious.
Prison is always a disposition of last resort. Your counsel conceded the inevitability of a prison sentence here and the need to fix a non-parole period. He was right to make that concession.
I have to proceed on the footing that you will serve every day of the head sentence that I will soon pronounce. I am not able to take into account the possibility of release on parole. I am required by law in this case to fix a non-parole period as I will be sentencing you to a period exceeding two years. The Adult Parole Board will make the decision as to whether you can be released on parole. It has nothing to do with me. I cannot even speculate about that possibility.
Totality
I take into account the principle of totality of sentence.
I have to consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. Your overall criminality here was high.
I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing term upon you. However a very sizeable prison term is demanded here. That is the reality when a person with no reduction in culpability, out of greed commits a commercial quantity trafficking at this level. The most serious offence by far is the commercial quantity trafficking charge. Both offences occurred on the same day and in the circumstances I have determined that the sentences will be served concurrently.
Disposal
Yes, all right. There are two orders that are sought here. They are consented to. One is a disposal order. I will deal with that, that relates to the garbage bags containing the cryovaced packages and the cannabis. There is no opposition to the making of this order, it is consented to. I order pursuant to s78 of the Confiscations Act the forfeiture to the State of that property referred to in the Schedule and it is to be handled in the manner contemplated by that signed order. I have signed that.
Forfeiture
In addition there is a forfeiture order sought pursuant to s34 of the Confiscations Act, is a consent order in relation to what is conceded to be tainted property. There it had been some discussion about that on the last occasion and indeed earlier today with some fresh submissions filed by the Crown setting out the potential ramifications of forfeiture. The application relates to the forfeiture of the cash. Well of course the cash is said to be property suspected of being the proceeds of crime. No one suggests I can take that into account. But the submissions related to the Mercedes truck that you were driving and the ramifications of that forfeiture. So I will be making this order, that truck will be forfeited and as I am satisfied it was acquired lawfully, the evidence goes only one direction there given the existence of that loan, I can take that forfeiture into account and do in the manner contemplated by your counsel. It is likely to have occasioned some financial loss. Firstly, with payment of the ongoing monthly loan sums since the date of the seizure of the truck and then likelihood of some balance owed to the bank once the truck is sold and the bank recompensed. The extent to which they will be out of pocket and they will be looking to you is impossible for me to determine at the moment. It will depend on the sale price of truck and that is not dictated by either of the valuations that are placed before me. Plainly though, there is going to be some financial loss falling at your feet. It is obviously not likely that there is going to be any sort of surplus in terms of the sale. The extent to which it covers the outstanding loan was the question and that is something I simply cannot determine. But I do take into account. There is obviously some financial loss there. It is not a powerful factor in mitigation given your use of that vehicle to commit this crime. I have signed that order as well and I should say it is consented to. Also there is no issue taken with the making of this order by the other Director of the company, your partner, who I believe has become a Director since you have been in custody. So I have signed that order and upon convicting you of the offence of trafficking in a drug of dependence - well that is the way it is specified, it is in fact a commercial quantity and dealing with property suspected of being the proceeds of crime I order by consent pursuant to s34(1) of the Confiscation Act that the property referred to be forfeited to the minister. So that order has been signed as well.

All right, that brings me then to the passing of the sentence then. I am sorry it has taken so long to get to this point but I needed to explain to you and to many others why I am doing what I am doing.
Sentence
Charge 1, is the only charge on the indictment of course. It is the charge of trafficking in a commercial quantity of cannabis. I convict and sentence you to five and a half years' imprisonment. That is the base sentence.
Summary offence
On the related summary offence of possession of property suspected of being the proceeds of crime, I convict and sentence you to two months' imprisonment.
Cumulation/Concurrency
As I said, in the circumstances, I am going to order that the two month sentence be served concurrently with the base sentence.
Total Effective Sentence
These orders then produce a total effective sentence of 5 and a half years' imprisonment.
Non-Parole Period
I fix a period of three and a half years during which you will not be eligible for release on parole.
Section 18
You have been in custody already for the period of 192 days and that period is to be declared as having already been served under this sentence.
Section 6AAA
I have told you that I have taken into account your guilty plea. I have. I have given significant weight to your guilty plea which was offered in the midst of the global pandemic. Had you pleaded not guilty and been found guilty by a jury, I would have convicted and sentenced you to eight years imprisonment. I would have fixed a non‑parole period of six years. That s6AAA declaration is to be noted in the records of the court.
Let me just see if there are any other matters. Ms Stephanides, are there any other matters?
MS STEPHANIDES: No, Your Honour.
HIS HONOUR: All right. Mr Abbinga, any matters from you?
MR ABBINGA: No, Your Honour.
HIS HONOUR: All right. Now you will need to - I am not sure how long we have got this link so just bear with me. Look, it is getting pretty late in the day. I am not suggesting you are going to want to use this link to have any sort of detailed discussions with your client. No doubt Mr Randles will need to organise some form of private video link to discuss what has happened here today, to discuss the ramifications with your client and his rights in relation to the sentence that I have passed. I am assuming that will occur within the next handful of days, will it?
MR ABBINGA: Yes, Your Honour, we will be in touch with Mark Yewen and I will speak with Peter Randles in order to organise a prison meeting.
HIS HONOUR: All right, so there is no particular need for you to use the link now. If you want to you can but it will be in the absence of me obviously and in the absence of the prosecutor and instructor but my staff will be here. Are you wanting to speak just very briefly to your client just to raise those sort of matters with him or not?
MR ABBINGA: No, that's okay, Your Honour.
HIS HONOUR: All right.
MR ABBINGA: I'll speak with Mr Randles first and then we'll be in touch.
HIS HONOUR: Right. Well you have heard that, Mr Johnson. Mr Randles will be in touch. Once I revise these reasons they will be provided to both sides anyway but Mr Randles will be in touch with you in the not too distant future to discuss what has happened here today and your rights in relation to it.
Are there any custody management issues that I need to deal with? I mean he has been in custody so I would not have thought that there is a need for me to say anything?
MR ABBINGA: No, Your Honour.
HIS HONOUR: All right. All right, well look I will sign that formal order in a moment but I think that completes the matter so I will - what time are we sitting on - - -
ASSOCIATE: 10 am.
HIS HONOUR: I will simply remain on the Bench but I will have the court adjourned until 10 am on Monday then, please.
COUNSEL: If it pleases the court.
HIS HONOUR: Thank you.
- - -

[2021] VCC 1284

3 September 2021